Citation Nr: 1329901	
Decision Date: 09/18/13    Archive Date: 09/25/13

DOCKET NO.  12-17 814	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to an increased rating for bilateral hearing loss currently rated at 10 percent.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

D. Johnson, Counsel



INTRODUCTION

The Veteran served on active duty from February 1968 to February 1971.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2012 decision by the Department of Veterans Affairs (VA) Regional Office (RO).  


FINDING OF FACT

Throughout the appeal, the Veteran has had, at worst, Level II hearing in the right ear and Level V hearing in the left ear.


CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code (DC) 6100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012).  The notice requirements regarding entitlement to a higher rating were accomplished in a letter sent in February 2012 prior to the initial rating decision.  This letter included notice of the type of evidence necessary to establish a disability rating or effective date for the issue under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. 

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran's VA medical records have been made available via Virtual VA.  The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf.  

The Veteran was provided with an audiologic examination in March 2012.  The examination report is adequate for evaluation purposes because the examiner conducted a clinical evaluation and described the hearing loss in sufficient detail so that the Board's evaluation is an informed determination.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

Further, in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the United States Court of Appeals for Veterans Claims (Court), noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  Id.  The examiner specifically addressed the effect of the Veteran's hearing loss on his daily activities and his employment.  Thus, the Board finds that the examination was adequate.

The Veteran has not alleged, nor does the record show, that his service-connected hearing loss has worsened in severity since the most recent examination in March 2012.  As such, a new examination is not required.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  All reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required.

Analysis

The Veteran seeks a higher rating for his service-connected bilateral hearing loss disability.

Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.  The veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  

Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.  

Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by puretone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second.  "Puretone threshold average" is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four.  This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  38 C.F.R. § 4.85, DC 6100.

The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  38 C.F.R. § 4.85.  The horizontal rows in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test.  The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect.  See 38 C.F.R. §§ 4.85, 4.87.

The regulations also provide that in cases of exceptional hearing loss, i.e. when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the Roman numeral designation will be determined for hearing impairment, separately, from either Table VI or Table VIa, whichever results in the higher numeral.  38 C.F.R. § 4.86.  A Roman numeral designation will also be determined from either Table VI or Table VIa, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  That numeral will then be elevated to the next higher Roman numeral.

A VA audiologist must fully describe the functional effects caused by a hearing disability in the final report.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).  

The Veteran's Virtual VA claims folder includes VA treatment records from January 2011 to May 2012.  Of note, a May 2011 audiology clinic record shows the Veteran reported difficulty hearing at work.  He explained that he worked in an auto-parts store and there are several people talking all the time.  Following clinical evaluation, the audiologist stated that the Veteran's hearing was stable from testing in 2009 and 2007.  It was noted that he had borderline normal hearing in low frequencies, dropping precipitously at 1500 Hz to a moderately-severe to severe high frequency hearing loss bilaterally.  His word recognition was between 80 and 84 percent.  The record also reflects that the Veteran's hearing aids were not providing sufficient gain in the high frequencies, but there was new technology that was expected to provide significantly-improved results.  The Veteran was to receive BTE hearing aids. 

Follow-up treatment records in June 2011 show the Veteran reported good gain and a satisfactory sound quality with his new (BTE) hearing aids.  It was confirmed he could hear well on the phone in the office.  The audiologist determined that the Veteran's prognosis for success was good. 

At a VA audiology examination in March 2012, the Veteran reported that his hearing loss impacted ordinary conditions of daily life, including the ability to work.  He had a difficult time following speech in noisy environments.  Puretone threshold levels, in decibels, were as follows:  




HERTZ



500
1000
2000
3000
4000
RIGHT
N/A
35
70
80
75
LEFT
N/A
40
70
70
75

Puretone threshold levels averaged 48 decibels for the right ear and 64 decibels for his left ear.  Speech discrimination testing was 84 percent in the right ear and 68 percent in the left ear.  These results correspond to Level II hearing on the right and Level V hearing on the left pursuant to Table VI.  The results further correspond to a 10 percent evaluation pursuant to Table VII.  A pattern of exceptional hearing loss under 38 C.F.R. § 4.86 is not demonstrated.

On the Veteran's VA Form 9, he reported that he had to reduce his hours at work due to his hearing loss disability.  He indicated that he is in over-the-counter sales, which requires considerable communication by telephone.  He stated that he cannot understand his customers and they hang up on him.  He also indicated that he cannot function in a crowd situation.

Based on the results of the March 2012 audiological evaluation, and in the absence of any additional medical evidence showing a more severe bilateral hearing loss disability, the Veteran's hearing loss has not approximated the criteria for a higher evaluation at any time during this appeal.  Although the Board does not discount the difficulties the Veteran has with his auditory acuity, it has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record.  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).  Thus, the assignment of a rating in excess of 10 percent on a schedular basis is not warranted. 

In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).   

In this case, the rating criteria contemplate the Veteran's hearing loss disability for entire duration of this appeal.  The Veteran's hearing loss disability is productive of decreased hearing acuity and this manifestation is contemplated in the respective applicable rating criteria.  In Martinak, the Court noted that unlike the rating schedule for hearing loss, the extraschedular provisions do not rely exclusively on objective test results to determine whether referral for an extraschedular rating was warranted.  The Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.  Id. at 455.  

As discussed above, the March 2012 VA examination report contains a description of the Veteran's subjective complaints.  The examiner indicated that the functional effect of Veteran's hearing loss is that it causes difficulty understanding speech in noisy environments.  While the Board has considered this evidence in light of Martinak and the provisions of 38 C.F.R. § 3.321(b)(1), the Veteran has not described functional effects that are considered "exceptional," or that are not otherwise contemplated by the assigned evaluation.  Referral for an extraschedular rating is not warranted.

The Board has also contemplated whether consideration of a total disability rating based on individual unemployability (TDIU) is warranted.  The Court has held that entitlement to a TDIU is an element of all appeals for a higher rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  As there is no evidence of unemployability due to the Veteran's hearing loss disability, the question of entitlement to a TDIU is not raised.

ORDER

A rating in excess of 10 percent for bilateral hearing loss is denied.



____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs